Professional Liability Matters

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April 2, 2015 • Malpractice Defenses, Professional Liability Matters

First Impressions Are Lasting: New Defense Available in Delaware for Professionals

In a case of first impression before the Delaware Chancery Court, the defense of in pari delicto was applied in favor of an auditor to defeat claims brought by the receiver of several insolvent insurance entities. This decision sets important and favorable precedent for the defense of accounting firms and other third parties when they become implicated in cases alleging corporate wrongdoing on the part of other defendants.

April 1, 2015 • Legal Malpractice, Professional Liability Matters, Settlement

Malpractice Claim Barred due to Mediation Confidentiality

Many litigants want their day in court; however, the vast majority of cases never make it to trial. Facing heavy dockets, courts are increasingly encouraging parties to resolve claims through ADR methods, like mediation. In order to foster successful mediation, several states have enacted mediation confidentiality statutes, which prevent mediation discussions from being admitted into court if the mediation is unsuccessful. While the purpose of these statutes is to encourage parties to speak openly with the mediator, confidentiality may have unforeseen consequences on the attorney-client relationship.

March 31, 2015 • Employment Practices Liability, Professional Liability Matters

Anxiety Over the ADA

The Americans with Disabilities Act (ADA) is designed to protect people with disabilities from discrimination in the workplace. Under the ADA, an employer must provide a reasonable accommodation to an employee with a disability if the employee requests an accommodation. Employers should take note of a recent decision that includes a new class within the definition of disability. In Jacobs v. N.C. Administrative Office of the Courts, the court reversed the district court and found that social anxiety disorder is a protected disability under the ADA.

March 26, 2015 • Legal Malpractice, Professional Liability Matters

Read It & Weep: Missed Deadline Leads to Significant Consequences

Your friends at PL Matters aim to keep you updated regarding best practices, especially when it comes to professional obligations. However, sometimes best practices just boil down to the basics, including careful reading of court directives. AT&T recently learned this lesson the hard way. Last week, an appeals court ruled that the telecom giant will have to pay $40 million in connection with a case because its attorneys failed to read a court document.

March 24, 2015 • Professional Liability Matters, Risk Management, Sanctions

AOM Failure Closes the Door, but for How Long?

To minimize frivolous professional malpractice claims, many states have enacted affidavit of merit statutes. The range and substance of these statutes can be dizzying; indeed, that’s why we recently published a handy table with requirements and resources for each state. The AOM rules provide defense attorneys with an important tool to help defend malpractice claims in certain jurisdictions. In the extreme scenario, dismissal may be appropriate due to a faulty, lacking or late AOM. But, the question remains, whether the plaintiff has the opportunity to cure that defect and continue with the litigation.

March 19, 2015 • Employment Practices Liability, Professional Liability Matters, Risk Management, Technology

Public and Private E-mails Don’t Mix

Hillary Clinton recently made headlines for using her personal email account for business purposes during her tenure as Secretary of State. This high profile example provides us with an opportunity to reflect upon what is commonplace for some. It can be tempting for employees to use personal email accounts to conduct corporate business, particularly when working remotely. However, the highly sensitive nature of Clinton’s job raised questions over the security of using a non-work email account to transmit information. Depending on the nature of your job or the emails that you send, there are risks when mixing personal and business e-mails.

March 17, 2015 • Employment Practices Liability, Professional Liability Matters

Court Adopts New Test in Harassment Cases

Professionals strive to maintain safe and welcoming workplaces for employees and guests. To further this goal, many firms have incorporated into their employment manuals anti-harassment policies and training. Yet, despite such precautionary steps, an employer cannot guarantee an environment free of wrongdoers. In the unfortunate event of a claim, it is up to the court to determine whether an employer that took proactive measures to protect employees is nonetheless liable in employment related harassment claims.

March 16, 2015 • Legal Malpractice, Professional Liability Matters, Risk Management

Does Privity Matter? Yup, According to a Recent Dismissal

Attorneys may be prepared for, or at the very least are aware of the risk of, claims raised by current or former clients. Generally, the first element in any malpractice claim is the existence of an attorney-client relationship. The Restatement (Third) of the Law Governing Lawyers provides that an attorney-client relationship arises when, “a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.” That seems straightforward enough, right? Nope! While in many malpractice cases it is clear whether the parties established an attorney-client relationship, it is not often so clear. Consider the following example.

March 11, 2015 • Legal Malpractice, Privileges, Professional Liability Matters

Unintended Waiver: the “At-Issue” Exception to the AC Privilege

The attorney-client privilege, the oldest of the common law evidentiary privileges, seeks to encourage thorough and truthful communication between attorney and client. Attorneys know, however, that the privilege is not absolute. One such exception is known as the “at issue” exception, a form of implied waiver of the attorney-client and work product privileges. This form of waiver is unique because it is one which the parties, by commencing litigation that may implicate legal advice, bring on themselves. Let’s take a closer look at this often misunderstood exception to the rule.